Resale Royalty Legislation Under Discussion

The American public has two weeks to weigh in on a matter of great significance.

Yes, Election Day is Nov. 6. But also, at 5 P.M. on Nov. 5, the comment period ends on a possible federal provision being considered by the U.S. Copyright Office that would allow artists to reap royalties when their artworks are resold for increased prices at public auction.

Congress last requested the Office to consider the matter in 1991, but the Office concluded that artists' sales might be harmed by forward-looking buyers factoring in future royalties, and opined that such laws would conflict with the American concept of free and unrestricted commerce.

Resale royalty laws are common in Europe but not in the U.S., though some states do have them. California's law was in the news this year when artist Mark Grotjahn sued collector Dean Valentine for flouting the law (under which artists are due 5 percent of the sale price when collectors resell a work of art for more than $1,000, provided that the artist lives in California or the transaction occurs in the state). Valentine settled out of court.

For their part, artists have long complained about the lack of a resale royalty. Collectors Robert and Ethel Scull auctioned off works by Johns, Twombly, Rauschenberg and Warhol for record prices at a 1973 auction at Sotheby Parke Bernet (as Sotheby's was then called). Rauschenberg notoriously told Robert Scull, "I've been working my ass off just for you to make that profit."